Miller v. Commissioner of Social Security et al

Filing 12

REPORT AND RECOMMENDATION THAT: (1) THE ALJS NON-DISABILITY FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; AND (3) THIS CASE BE CLOSED re 2 Complaint filed by Terry D Miller Objections to R&R due by 6/5/2015. Signed by Magistrate Judge Michael J. Newman on 05/19/2015. (ead)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
TERRY D. MILLER,
Plaintiff,

Case No. 3:14-cv-208

vs.
COMMISSIONER OF
SOCIAL SECURITY,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendant.

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND
REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER
THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT
WITH THIS OPINION; AND (3) THIS CASE BE CLOSED

This is a Social Security disability benefits appeal.

At issue is whether the

Administrative Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore
unentitled to Disability Insurance Benefits (“DIB”) and/or Supplemental Security Income
(“SSI”).2 This case is before the Court upon Plaintiff’s Statement of Errors (doc. 7), the
Commissioner’s opposition to Plaintiff’s Statement of Errors (doc. 9), Plaintiff’s reply (doc. 11),
the administrative record (doc. 6),3 and the record as a whole.

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2
“The Commissioner’s regulations governing the evaluation of disability for DIB and SSI are
identical . . . and are found at 20 C.F.R. § 404.1520, and 20 C.F.R. § 416.920 respectively.” Colvin v.
Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). Citations in this opinion to DIB regulations are made with
full knowledge of the corresponding SSI regulations, and vice versa.
3
Hereafter, citations to the electronically-filed administrative record will refer only to the PageID
number.

I.
A.

Procedural History

Plaintiff filed for DIB and SSI alleging a disability onset date of April 6, 2005. PageID
284-98. Plaintiff suffers from a number of impairments including, among others, depression,
anxiety, and the residual effects of a coronary artery bypass graft. PageID 74.
After initial denial of his claims, Plaintiff received a hearing before ALJ Amelia G.
Lombardo on December 11, 2012. PageID 89-123. The ALJ issued a written decision on
February 6, 2013, finding Plaintiff not “disabled.” PageID 72-81. Specifically, the ALJ’s
findings were as follows:
1.

The claimant meets the insured status requirements of the Social Security
Act through December 31, 2010;

2.

The claimant has not engaged in substantial gainful activity since April 6,
2005, the amended alleged onset date (20 CFR 404.1571 et seq. and
416.971 et seq.);

3.

The claimant has the following severe impairments: depression, anxiety,
skin allergies, and the residual effects of a two-vessel coronary artery
bypass graft (20 CFR 404.1520(c) and 416.920(c));

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926);

5.

After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity [“RFC”] to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b)[4] except that he is

4

The Social Security Administration classifies jobs as sedentary, light, medium, heavy, and very
heavy depending on the physical exertion requirements. 20 C.F.R. § 404.1567. Light work “involves
lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds” and “requires a good deal of walking or standing, or . . . sitting most of the time with some
pushing and pulling of arm or leg controls.” Id. § 404.1567(b). An individual who can perform light
work is presumed also able to perform sedentary work. Id. Sedentary work “involves lifting no more
than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties.” Id. § 404.1567(a).
2

limited to unskilled work that is low stress, meaning no assembly-line
production quotas and not fast-paced work. In addition, he is restricted to
indoor work in a clean-air environment and that does not require him to
use latex gloves.
6.

The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).

7.

The claimant was born [in] 1963, and was 41 years old, which is defined
as a younger individual age 18-49, on the alleged disability onset date (20
CFR 404.1563 and 416.963).

8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).

10.

Considering the claimant’s age, education, work experience, and [RFC],
there jobs that exist in significant numbers in the national economy that
the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and
416.969(a)).

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from April 6, 2005, through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).

PageID 74-80.
Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 52-57.
Plaintiff then filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir.
2007) (noting that, “[u]nder the Federal Rules of Appellate Procedure, [claimant] had 60 days
from the Appeals Council’s notice of denial in which to file his appeal”).

3

B.

Evidence of Record

Plaintiff, in his Statement of Errors, sets forth an extensive summary of the medical
evidence. Doc. 7 at PageID 865-76. The Commissioner states that Plaintiff’s Statement of
Errors adequately sets forth the relevant medical evidence. Doc. 9 at PageID 887. Accordingly,
except as otherwise noted in this Report and Recommendation, the undersigned incorporates
Plaintiff’s undisputed summary of the evidentiary record. Where applicable, the Court will
identify the medical evidence relevant to this decision.
II.
A. Standard of Review
The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s
non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed
the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 74546 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When
substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if
substantial evidence also exists in the record upon which the ALJ could have found Plaintiff
disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of
choice’ within which he [or she] can act without the fear of court interference.” Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may result in reversal even if the ALJ’s decision is supported by substantial evidence in the
record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the

4

Commissioner will not be upheld where the [Social Security Administration] fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.” Bowen, 478 F.3d at 746.
B.

“Disability” Defined

To be eligible for disability benefits, a claimant must be under a “disability” as defined
by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a
“disability” includes physical and/or mental impairments that are both “medically determinable”
and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging
in “substantial gainful activity” that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the
ALJ’s review, see Colvin, 475 F.3d at 730, the complete sequential review poses five questions:
1.

Has the claimant engaged in substantial gainful activity?

2.

Does the claimant suffer from one or more severe impairments?

3.

Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing
of Impairments (the “Listings”), 20 C.F.R. Subpart P, Appendix 1?

4.

Considering the claimant’s RFC, can he or she perform his or her past
relevant work?

5.

Assuming the claimant can no longer perform his or her past relevant
work -- and also considering the claimant’s age, education, past work
experience, and RFC -- do significant numbers of other jobs exist in the
national economy which the claimant can perform?

20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F.Supp.2d 816, 818
(S.D. Ohio 2001). A claimant bears the ultimate burden of establishing that he or she is disabled

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under the Social Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th
Cir. 1997).
III.
Plaintiff argues that the ALJ erred by improperly weighing the opinions of: (A) his
treating psychiatrist Yiu-Chug Chan, M.D.; and (B) state agency medical consultants. Doc. 7 at
PageID 876-82. The undersigned agrees with Plaintiff that the ALJ’s analysis regarding the
medical source opinions of record is lacking and that remand is appropriate for further
proceedings.
“[T]he Commissioner’s regulations establish a hierarchy of acceptable medical source
opinions[.]” Snell v. Comm’r of Soc. Sec., No. 3:12-cv-119, 2013 WL 372032, at *9 (S.D. Ohio
Jan. 30, 2013). Treating physicians and psychologists top the hierarchy. Id. “Next in the
hierarchy are examining physicians and psychologists, who often see and examine claimants
only once.” Id. “[N]on-examining physicians’ opinions are on the lowest rung of the hierarchy
of medical source opinions.” Id. “The regulations provide progressively more rigorous tests for
weighing opinions as the ties between the source of the opinion and the individual [claimant]
become weaker.” Id. (citing SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996)).
“An ALJ is required to give controlling weight to ‘a treating source’s opinion on the
issue(s) of the nature and severity of [the claimant’s] impairment(s)’ if the opinion ‘is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.’” LaRiccia v. Comm’r of
Soc. Sec., 549 F. App’x 377, 385 (6th Cir. 2013) (citation omitted) (alterations in original). This
requirement is known as the “treating physician” rule. Blakley v. Comm’r of Soc. Sec., 581 F.3d
399, 406 (6th Cir. 2009) (citations omitted). Greater deference is given to treating source

6

opinions “since these sources are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective
to the medical evidence that cannot be obtained from the objective medical findings alone or
from reports of individual examinations[.]” 20 C.F.R. § 404.1527(c)(2); see also Blakely, 581
F.3d at 406. Thus, an ALJ must give controlling weight to a treating source if the ALJ finds that
opinion well-supported by medically acceptable evidence and not inconsistent with other
substantial evidence in the record. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.
2004).
Closely associated with the treating physician rule is the “good reasons rule,” which
“require[s] the ALJ to always give good reasons in [the] notice of determination or decision for
the weight given to the claimant’s treating source’s opinion.” Blakely, 581 F.3d at 406-07.
“Those good reasons must be ‘supported by the evidence in the case record, and must be
sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to
the treating source’s medical opinion and the reasons for that weight.’” Id.
Thus, when the ALJ declines to give controlling weight to a treating physician’s
assessment, “the ALJ must still determine how much weight is appropriate by considering a
number of factors, including the length of treatment relationship and the frequency of
examination, the nature and extent of the treatment relationship, supportability of the opinion,
consistency of the opinion with the record as a whole, and any specialization of the treating
physician.” Id. at 406; see also 20 C.F.R. § 404.1527(c). In addition, unless the opinion of the
treating source is entitled to controlling weight, an ALJ must “evaluate all medical opinions
according to [these] factors, regardless of their source[.]” Walton v. Comm’r of Soc. Sec., No.
97-2030, 1999 WL 506979, at *2 (6th Cir. June 7, 1999).

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An ALJ is not required to accept a physician’s conclusion that his or her patient is
“unemployable.” Whether a person is disabled within the meaning of the Social Security Act is
an issue reserved to the Commissioner, and a treating physician’s opinion -- that his or her
patient is disabled -- is not “give[n] any special significance.” 20 C.F.R. § 404.1527; see Warner
v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (stating that “[t]he determination of
disability is ultimately the prerogative of the Commissioner, not the treating physician”).
However, “[t]here remains a presumption, albeit a rebuttable one, that the opinion of a treating
physician is entitled to great deference.” Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009).
In this case, Dr. Chan found that Plaintiff was either markedly or extremely limited in all
areas of social functioning. PageID 764-66. It is not clear what weight, if any, the ALJ actually
gave Dr. Chan’s opinion; instead, the ALJ simply found that “Dr. Chan’s opinion cannot be
given controlling, or even significant weight.” PageID 79. Initially, the Court finds that the ALJ
erred by failing to mention or specifically analyze whether Dr. Chan’s opinion is entitled to
controlling weight, i.e., whether the opinion is “supported by medically acceptable clinical and
laboratory diagnostic techniques” and whether the opinion is consistent “with the other
substantial evidence in [the] case record.’” LaRiccia, 549 F. App’x at 385. Such failure
amounts to error, see Aytch v. Comm’r of Soc. Sec., No. 3:13-cv-135, 2014 WL 4080075, at *4
(S.D. Ohio Aug. 19, 2014), because the lack of explanation regarding the “controlling weight
[analysis] hinders a meaningful review of whether the ALJ properly applied the treatingphysician rule that is at the heart of this regulation.” Gayheart v. Comm’r of Soc. Sec., 710 F.3d
365, 377 (6th Cir. 2013) (citations omitted).
Even assuming, arguendo, that the ALJ adequately conducted the controlling weight test
-- which the undersigned concludes she did not -- the undersigned further finds that the ALJ gave

8

only conclusory reasons as to the ultimate weight accorded to Dr. Chan’s analysis. For instance,
while the ALJ found Dr. Chan’s opinion inconsistent with his own treatment notes5 and “the
treatment notes of the claimant’s therapist,” the ALJ failed to cite to any specific treatment note
or other part of the record in support of such conclusory contention. Such omission is error. See
Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551–52 (6th Cir. 2010) (holding that “it is not
enough to dismiss a treating physician’s opinion as ‘incompatible’ with other evidence of
record” in the absence of “some effort to identify the specific discrepancies and to explain why it
is the treating physician’s conclusion” is accorded lesser weight).
Based on all of the foregoing, the undersigned concludes that the ALJ failed to conduct a
controlling weight analysis in analyzing Dr. Chan’s opinion, failed to give good reasons for not
giving the opinion deferential weight, and failed to specifically state the actual weight accorded.
Further, the ALJ erred in providing no analysis to support giving “great weight” to the
opinions of certain unidentified state agency consultants. PageID 77-78.

“Unless a treating

source’s opinion is given controlling weight, the [ALJ] must explain in the decision the weight
given to the opinions of a State agency medical . . . consultant[.]”

20 C.F.R.

§ 404.1527(e)(2)(ii). Such explanation must be “meaningful.” Ott v. Comm’r of Soc. Sec., No.
1:08-CV-00399, 2009 WL 3199064, at *3 (S.D. Ohio Sept. 29, 2009).
In weighing opinions of non-treating sources, such as state agency consultants, Social
Security regulations require the ALJ to apply the same level of scrutiny as afforded to treating
source opinions. Gayheart, 710 F.3d at 379. “A more rigorous scrutiny of the treating-source
opinion than the nontreating and nonexamining opinions is precisely the inverse of the analysis
that the regulation[s] require[].” Id. Simply restating the consultant’s opinion and offering a
“[A]lleged internal inconsistencies between [a] doctor’s opinions and portions of [that doctor’s]
reports . . . [are a] factor[] . . . properly applied only after the ALJ has determined that a treating-source
opinion will not be given controlling weight.” Gayheart, 710 F.3d at 376.
5

9

conclusory assessment, without further discussion, fails to satisfy the requirement that the ALJ
provide meaningful explanation of the weight given to all the medical opinion evidence. See 20
C.F.R. § 404.1527(c); see also Aytch, 2014 WL 4080075, at *5-6 (citing Chavez v. Astrue, No.
12-cv-00627-LTB, 2012 WL 5250396, at *7 (D. Colo. Oct. 24, 2012) (finding the ALJ’s
explanation “lacking” where the ALJ merely “recapitulated” the reasons stated by the ME for
disagreeing with the opinion of a treating physician and failed to “provide his reasons for
according [the treating physician’s] opinion the . . . weight he did”).
Here, with regard to the unidentified state agency consultants’ opinions, the ALJ stated
only that, “[i]n the determination of [the RFC], great weight has been given to the opinion of the
[Board of Disability Determination] reviewing consultants, except for the hazard restriction[.]”
PageID 77-78. The ALJ, in her decision, fails to elaborate any further regarding these opinions;
thus failing to evidence consideration of any of the required factors set forth in 20 C.F.R.

§

404.1527(c). Accordingly, the undersigned finds that the ALJ failed to provide meaningful
explanation for the great weight accorded opinions of the record reviewing, state agency
consultants.
IV.
When the ALJ’s non-disability determination is unsupported by substantial evidence, the
Court must determine whether to remand the matter for rehearing or to award benefits.
Generally, benefits may be awarded immediately “if all essential factual issues have been
resolved and the record adequately establishes a plaintiff’s entitlement to benefits.” Faucher v.
Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan,
905 F.2d 918, 927 (6th Cir. 1990). The Court may only award benefits where proof of disability
is strong and opposing evidence is lacking in substance, so that remand would merely involve the

10

presentation of cumulative evidence, or where proof of disability is overwhelming. Faucher, 17
F.3d at 176; see also Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994); Mowery v. Heckler,
771 F.2d 966, 973 (6th Cir. 1985).
Here, evidence of disability is not overwhelming in light of divergent medical source
opinions. Accordingly, the undersigned concludes that remand for further proceedings is proper
so that the ALJ can meaningfully explain the weight to be reasonably accorded all medical
evidence of record and determine anew Plaintiff’s disability status.
V.
IT IS THEREFORE RECOMMENDED THAT:
1.

2.

This matter be REMANDED to the Commissioner under the Fourth
Sentence of 42 U.S.C. § 405(g) for proceedings consistent with this
opinion; and

3.

Date:

The Commissioner’s non-disability finding be found unsupported by
substantial evidence, and REVERSED;

This case be CLOSED.

May 19, 2015

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

11

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report and Recommendation is being served by
one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be
extended further by the Court on timely motion for an extension. Such objections shall specify
the portions of the Report and Recommendation objected to, and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is based in
whole or in part upon matters occurring of record at an oral hearing, the objecting party shall
promptly arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party’s objections within FOURTEEN days after being
served with a copy thereof.

As is made clear above, this period is likewise extended to

SEVENTEEN days if service of the objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C),
(D), (E), or (F). Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).